Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2007

Williams v. St Joan Arc Church
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4953




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 05-4953
                                      __________

                                MARILYN WILLIAMS,
                                                Appellant

                                           v.

                             ST. JOAN OF ARC CHURCH
                                    __________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 04-cv-01033)
                     District Judge: Honorable William L. Standish
                                      __________

                             Argued on November 28, 2006

                   Before: RENDELL and AMBRO, Circuit Judges,
                           and PRATTER*, District Judge.

                                  (Filed April 3, 2007)



Colleen R. Johnston [ARGUED]
Rothman Gordon
310 Grant Street, 3rd Floor
Pittsburgh, PA 15219
   Counsel for Appellant

__________________

    * Honorable Gene E.K. Pratter, Judge of the United States District Court for the
      Eastern District of Pennsylvania, sitting by designation.
Joni Mangino
Dara A. DeCourcy [ARGUED]
Aaron R. Cramer
Zimmer Kunz
600 Grant Street
3300 USX Tower
Pittsburgh, PA 15219
   Counsel for Appellee

                                       __________

                               OPINION OF THE COURT
                                     __________

PRATTER, District Judge.

       Marilyn Williams appeals from the entry of summary judgment in favor of her

former employer, St. Joan of Arc Church (“Church”), in this case brought under the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. (“ADEA”). Because the

District Court erroneously viewed the disputed facts in the light more favorable to the

movant Church than to Ms. Williams, we will reverse.

       Ms. Williams worked as the parish secretary from 1983 until May 2003, when her

position was terminated. Ms. Williams was then 64 years old. While the parties agree

that her position was eliminated, the parties dispute whether Ms. Williams was

“terminated” or whether she “resigned.” She asserts that she only left her employment

after being told by the pastor, Father Pribonic, that her position would be eliminated as of

the end of July 2003. According to Ms. Williams, during this interchange Father Pribonic

made a specific reference to her age and planning for her retirement.

       The Church disputes Ms. Williams’s account of this meeting. During discovery,


                                             2
Father Pribonic testified that the parish secretary position was eliminated for budgetary

reasons to allow for the creation of a new position of parish office manager by combining

the tasks previously performed by Ms. Williams with those of another employee, Mary

Ann Heaps, whose part-time bookkeeper position was also being eliminated. Ms. Heaps,

who was then 47 years old, ultimately was selected to be the parish office manager, at

which point she assumed the duties previously performed by Ms. Williams.

       The core of this case concerns the interplay of the evidentiary burdens borne by the

parties with the appropriate summary judgment standards. While a jury may eventually

agree with the District Court’s anticipatory expressions of various practical realities and

lack of discriminatory motives, we discern too many material factual disputes in the

current record on the fundamental issues with too high a burden having been applied to

Ms. Williams below to embrace the District Court’s summary judgment conclusion.1

       The District Court concluded first that Ms. Williams had not presented sufficient

evidence that the Church was actually motivated by a discriminatory animus and that the

reasons given by the Church for the termination of her position were merely pretextual.

The District Court stated that “[b]ecause the Church is free to consolidated [sic] parish

staff positions for reasons of economy and efficiency, to maintain a claim for wrongful

discharge, Plaintiff must make a showing that Defendant’s proffered legitimate business


  1
   The District Court referred the case to a Magistrate Judge who prepared a Report and
Recommendation urging summary judgment in favor of the Defendant Church. The
Report and Recommendation was adopted by the District Court without modification.


                                              3
reasons were merely pretextual.” Report and Recommendation 8.

       The District Court next concluded that because she presented no evidence

supporting pretext, the only avenue by which Ms. Williams could avoid summary

judgment depended on the Church’s decision to place the younger Ms. Heaps2 in the new

position of office manager. Here, the District Court concluded that Ms. Williams’s

failure to apply for the new position defeats any such claim.3 

The District

Court considered that Ms. Williams “was expressly invited to apply for the position and

declined to do so, electing instead to terminate her employment.” 

According to

the District Court, because Ms. Williams did not apply for the new position, she could not

maintain a claim that the Church chose someone younger instead of her. The District

Court further concluded that for these same reasons, Ms. Williams could not make out a

claim for constructive discharge. 

       Finally, the District Court found that Ms. Williams failed to present sufficient

evidence that she was subjected to an adverse employment action to permit her to proceed


  2
     Although Ms. Heaps was 47 years old, and, therefore, also a protected employee
under the ADEA, Ms. Williams may still bring a claim pursuant to the ADEA as long as
the replacement employee was “substantially younger” than her. See O’Connor v.
Consol. Coin Caterers, 

, 313 (1996). In Showalter v. University of
Pittsburgh Medical Center, 

, 235-36 (3d Cir. 1999), this Court relied upon
O’Connor to hold that the “sufficiently younger” category option applies to “reduction-
in-force” cases under the ADEA as well as to non-reduction-in-force cases.
  3
    The Magistrate characterized this as a “failure to retain” case, Report and
Recommendation 1, and seemed to consider Ms. Williams’s failure to apply for the newly
created position fatal to her claim. 

10-14.


                                               4
on her age discrimination claims. 

       We find that the District Court erred in concluding that Ms. Williams did not

establish her prima facie claim as a matter of law and also by substituting its own

judgment for that of a jury’s on the issue of whether - - and, if so, when and to what

degree of significance - - an offer was extended to Ms. Williams to apply for the newly

created office manager job.

       We exercise plenary review over an order granting summary judgment, and apply

the same standard the lower court should have applied. 

. A

federal court should grant summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). In making this determination, “a

court must view the facts in the light most favorable to the nonmoving party and draw all

inferences in that party’s favor.”   

(quoting Armbruster v.

Unisys Corp., 

, 777 (3d Cir. 1994)).

       In ADEA cases, the court applies a “slightly modified version” of the evidentiary

framework set forth in McDonnell Douglas Corp. v. Green, 

(1973).

(citing Keller v. Orix Credit Alliance, Inc., 

,

1108 (3d Cir. 1997) (en banc). Cf. O’Connor v. Consol. Coin Caterers, 

,

311 (1996) (assuming, without deciding, that the McDonnell Douglas framework applies



                                               5
to ADEA cases). Thus, a plaintiff bears the burden of proving, by a preponderance of the

evidence, a prima facie case of discrimination. Turner v. Schering-Plough Corp.,

, 341 (3d Cir. 1990); 

. To establish a prima facie

case of discrimination under the ADEA - - a task not intended to be onerous, Sempier v.

Johnson & Higgins, 

, 728 (3d Cir. 1995) - - a plaintiff must demonstrate that

(1) she was 40 years of age or older at the time the action occurred; (2) she suffered an

adverse employment action; (3) she was qualified for the job from which she was

terminated; and (4) she was replaced by a sufficiently younger person, creating an

inference of discrimination. 

.

       If a plaintiff succeeds in establishing a prima facie case, the burden of production

(but not of persuasion) shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the employee’s rejection. 

; 

. Should the defendant fail, judgment should be entered for the plaintiff.

. If the defendant does carry this burden, however, the burden

of production shifts back to the plaintiff to summon evidence “from which a fact finder

could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more likely than not a motivating

or determinative cause of the employer’s action.” 

Opposing a

motion for summary judgment, a plaintiff need not present evidence that the employer’s

proffered reason was false and that discrimination was the real reason, but may prevail by



                                              6
either discrediting the employer’s proffered reasons, either circumstantially or directly, or

by providing evidence, whether circumstantial or direct, that discrimination was more

likely than not a motivating or determinative cause of the adverse employment action. 

(citations omitted); see also Torre v. Casio, Inc., 

, 830 (3d. Cir. 1994)

(affirming this standard at the summary judgment phase) (citing Fuentes v. Perskie,

, 764 (3d Cir. 1994)).

       Here, the District Court’s analysis with respect to whether Ms. Williams presented

a prima facie case was in error. While the analysis initially focused on Ms. Williams’s

burden of producing evidence of pretextual motive, the District Court ultimately

concluded that Ms. Williams did not produce sufficient evidence of an adverse

employment action, which is the second element required to establish a prima facie case.

In essence, the District Court adopted the Church’s argument that Ms. Williams

“voluntarily resigned” from her position, despite the clear assertion in Ms. Williams’s

motion papers that she was “fired.” R. at 40, 44. Then, later in its analysis of the fourth

prong, the District Court essentially re-addressed the adverse action issue by reasoning

that Ms. Williams could not have been “replaced” by a substantially younger person

because her position was eliminated (i.e., there was no “replacement” because there was

no empty position to fill). To justify this reasoning, the District Court noted that Father

Pribonic, in the same letter in which he confirmed to Ms. Williams that her position was

being eliminated, invited her to apply for the new office manager position, which she did



                                              7
not do. R. at 27. The District Court then pursued two avenues that we believe have no

determinative roles in the analysis at this point, namely, whether Ms. Williams was

terminated or voluntarily resigned (given that she ostensibly was invited to apply for the

new job) and whether it would have been futile for her to apply for the new job.

       We see the issue of “adverse employment action” much more simply. Ms.

Williams’s ADEA claim rests upon her termination, and the elimination of her job, which

was accomplished in her first encounter with Father Pribonic. Whether a jury may

consider probative of some issue, one way or the other, the parties’ disagreement with

respect to the significance of the subsequent invitation that Ms. Williams apply for the

new position (and her failure to do so) does not alter the fact that she was terminated from

her job.

       Ms. Williams asserts that when Father Pribonic initially approached her about the

elimination of the parish secretary position, he raised for discussion or consideration her

age and potential retirement. R. at 88, 108. She claims that at that first meeting, although

Father Pribonic mentioned the new position, he did not extend an invitation to her to

apply for the position. R. at 83. According to Ms. Williams, there was no discussion at

that time about the Church’s need to economize or reduce personnel for any similar

reason. Indeed, she testified that she asked Father Pribonic whether he was trying to get

rid of her, R. at 88, while Father Pribonic denies being asked that question. R. at 101. He

asserts that by the time he met with Ms. Williams he had already decided to eliminate her



                                             8
job. R. at 100. The parties’ differing accounts of this aspect of their meeting does not

undermine our conclusion that if the District Court had considered this evidence in the

light more favorable to Ms. Williams rather than the interpretation more favorable to the

Church, Ms. Williams’ satisfaction of her burden to present a prima facie case would

have been clear. Ms. Williams presented evidence that (1) at age 64, she was a member

of the protected class, (2) she was terminated from her position as office secretary and for

that reason suffered an adverse action, (3) she was qualified for the job of office

secretary, and (4) she was replaced in the performance of her previous duties by Ms.

Heaps, who is significantly younger than Ms. Williams. Thus, the District Court’s

granting of the Church’s motion for summary judgment on this point was in error.

       Because we conclude that Ms. Williams presented sufficient evidence to establish

a prima facie case, we must next consider whether the District Court also erred in

concluding that there was no evidence on the record that would support a reasonable jury

finding pretext. The Church argues that its decision to consolidate the two positions was

motivated by considerations of economics and efficiency, considerations which may

prove to be legitimate in the final analysis, but which are at this point open to reasonable

dispute. Ms. Williams suggests that Father Pribonic’s statements during their first

meeting about her age and his raising the possibility that she might retire provide

sufficient evidence of discriminatory animus to undermine the legitimacy of the after-the-

fact stated reasons for the job elimination. Indeed, a jury may conclude that these reasons



                                              9
may well only have suggested themselves once Ms. Williams’s “retirement” appeared to

Father Pribonic to be imminent. Ms. Williams further argues that by improperly

discounting such statements by her superior, which are part of the record, the District

Court improperly substituted its own judgment for that of the jury.

       The District Court did not address at all the alleged statements made by Father

Pribonic about Ms. Williams’s age and the possibility that she might retire (nor, for that

matter, did the District Court acknowledge the parties’ dispute over whether Father

Pribonic or Ms. Williams first raised the topics of age and retirement). Rather, the

District Court assumed the reasonableness of the Church’s purported reasons of

efficiency and economics for consolidating the two positions without a single citation to

the record.

       Given the burden shifting analysis discussed above, and recognizing that Ms.

Williams must only either discredit the Church’s proffered reasons or adduce evidence

that discrimination was more likely than not a motivating or determinative cause of the

adverse employment action, we conclude that there are disputes of fact which should be

addressed by a fact-finder because there is sufficient record evidence from which that

fact-finder reasonably could conclude that the Church’s efficiency/economics argument

is, in fact, pretextual.4

4
 Father Pribonic testified that the Church was experiencing financial problems in May
2003, specifically with respect to “increasing overhead.” R. at 109. However, he
testified that there was no financial emergency, and the parish’s financial situation was no
worse than at any other time. 

testified that “given the small space of the area


                                             10
       Therefore, even though in the final analysis and after observing the key parties

where the offices are located, it would be more efficient to have one person handle all
parts of the operation in the office.” R. at 100. As to the hiring of Ms. Heaps as office
manager, Ms. Heaps testified that she had “a couple informal conversations” with Father
Pribonic about the position, which she would consider an “interview,” but that she did not
complete an application or submit any documents to be considered for the position. R. at
30.

        Ms. Williams also submitted evidence that, despite Father Pribonic’s intent to have
only one person fill a consolidated position of office manager, for the sake of efficiency,
Mary Tracey, another employee of the Church, worked in the rectory from around
September 2003 through approximately October or November 2003. R. At 223. Ms.
Tracey fulfilled many of the office manager’s responsibilities, such as answering phones,
scheduling masses and “just anything that anybody else would have done when they were
there.” R. at 188. Thus, although the Church intended to consolidate two positions into
one, Ms. Williams offered some evidence that suggests that the consolidated position still
required two people to perform all of the required tasks. Moreover, the evidence is such
that a jury could conclude that whatever need for efficiency there may have been, it had
certainly existed for quite some time and may only have come to the fore when Ms.
Williams’s “retirement” did not proceed according to plan. This Court offers no
comment upon these competing accounts, other than to conclude that it was - - and is - -
up to the jury to judge the efficacy of Father Pribonic’s stated reasons for terminating Ms.
Williams and whether the termination constituted age discrimination.




                                            11
testify, the jury may find Ms. Williams’s claim unpersuasive, at this juncture we see

enough of a genuine dispute on sufficiently material facts to permit a jury to resolve this

case, and we will reverse the entry of summary judgment for the employer.




AMBRO, Circuit Judge, dissenting in part


       This case presents unfortunate circumstances in which a dedicated Church

employee felt that she was unjustly let go because of her advancing age. However (and

despite my belief that summary judgment is granted too often), I cannot agree with the

majority that Ms. Williams has established the disputed issues of material fact necessary

to defeat summary judgment and warrant a jury trial. I do agree with the majority that the

District Court erred in its employment-discrimination analysis, but not because it stepped

into the jury’s collective shoes. In this context, I would affirm.


       The principal problem is that the District Court collapsed the various stages of the

McDonnell Douglas burden-shifting framework into a single tier. See McDonnell

Douglas Corp. v. Green, 

(1973). Specifically, it intertwined the issue of

Ms. Williams’s failure to apply for the new position with the issue of her ability to show

that the Church’s proffered reasons for consolidating two jobs were pretextual. The Court



                                             12
concluded that neither the elimination of Ms. Williams’s position nor the failure to hire

her for the new position was an adverse employment action because the Church’s

decision to consolidate, and thus eliminate Ms. Williams’s position, was the result of

legitimate business concerns. Essentially, the Court juxtaposed two separate analyses

under the McDonnell Douglas framework: the prima facie stage, see Maj. Op. at *6

(citing Showalter v. Univ. of Pittsburgh Med. Ctr., 

, 234 (3d Cir. 1999);

Turner v. Schering-Plough Corp., 

, 341 (3d Cir. 1990)), and the pretext

stage, see Maj. Op. at *7 (same). On review, I consider each stage separately, as does the

majority. But, unlike the majority, separating those two inquiries does not lead me to

“discern too many”—or any—“material factual disputes,” Maj. Op. at *3, regarding

either inquiry such that we must send this case back for a jury trial.


       First, I “see the issue of ‘adverse employment action’” even “more simply” than

does the majority.5 I emphasize the principle that, typically, discrimination claims are

easily made out. See, e.g., Sempier v. Johnson & Higgins, 

, 728 (3d Cir.

1995) (“[T]he prima facie case under the McDonnell Douglas–Burdine pretext framework

is not intended to be onerous.”) (citations omitted); Weldon v. Kraft, 

, 798

(3d Cir. 1990) (“The framework set forth in McDonnell Douglas . . . was never intended

5
 The majority views as relevant to the District Court’s application of the summary
judgment standard the dispute between Ms. Williams and Father Pribonic concerning
what transpired at their first meeting. I disagree. In my view, Ms. Williams established
her prima facie claim as a matter of law, and the facts surrounding the events leading up
to the elimination of her position are irrelevant.


                                             13
to be rigid, mechanized or ritualistic. Rather, it is merely a sensible, orderly way to

evaluate the evidence in light of common experience as it bears on the critical question of

discrimination.”) (internal citations omitted); see also Idahoan Fresh v. Advantage

Produce, Inc., 

, 204 (3d Cir. 1998) (noting that we must construe remedial

statutes liberally). Therefore, in the face of doubt as to whether Ms. Williams meets the

requirements for each prong, we would come down in her favor.


       Here, there is no doubt. Only the second prong is at issue—whether Ms. Williams

suffered an adverse employment decision. As the majority notes, Maj. Op. at *4 n.2, we

have held that reduction-in-force actions suffice to meet the requirements of the adverse

employment decision prong when, as here, the employer has retained a similarly situated

employee who was sufficiently younger to create an inference of age discrimination. See

Anderson v. Consolidated R.R. Corp., 

, 250 (3d Cir. 2002); 

–35. Because Ms. Williams’s position was eliminated through a reduction-in-

force decision, I conclude along with the majority—though as a matter of law, for which

issues of disputed fact as to the reasons for that elimination are irrelevant—that the

District Court’s grant of summary judgment on this point was incorrect.6



6
  On this issue, I disagree with the majority that “whether Ms. Williams was terminated or
voluntarily resigned” has “no determinative role[] in the analysis” at the prima facie stage. The
involuntary termination constituted prong two of the prima facie case. This is consistent with
Ms. William’s claims. See Appellant’s Br. at 20 (noting that her claim is not one of constructive
discharge, but that the elimination of her job was a discharge that constituted an adverse
employment action).


                                               14
       Second, I disagree that material issues of disputed fact persist to defeat summary

judgment at the pretext stage. See Maj. Op. at *3, 5. The majority bases its opinion on a

single issue: “whether—and, if so, when and to what degree of significance—an offer

was extended to Ms. Williams to apply for the newly created office manager job.” Maj.

Op. at *5. There is no dispute that Father Pribonic invited Ms. Williams to apply for the

new position; the record clearly shows that he did. See App. at 27 (letter stating that “[a]

new position of Parish Office Manager is being created and you are invited to apply for

the same”). Thus, the majority cannot base its conclusion on the notion that there was a

question as to whether Ms. Williams received an offer to apply.


       The only dispute on this point is when Father Pribonic first made this

invitation—at their first meeting, see 

100–01, or by letter, 

But the

timing does not determine the outcome because it is not a material issue to the claim.

Neither does whether she took the invitation to heart. That is, if, by asking “to what

degree of significance” she received the invitation to apply, the majority means to suggest

that Ms. Williams’s failure to apply may support her discrimination claim, this suggestion

seems unfounded. As the District Court noted, the failure to hire Ms. Williams for the

new position was not an adverse employment action because, once she was no longer

employed by the Church, its failure to hire her—especially when she did not apply for the

position—did not affect her employment situation. See Becker v. Mack Trucks, Inc., 

, 382 (3d Cir. 2002) (“[A] failure to hire does not amount to a circumvention of


                                              15
promised benefits because job applicants who have yet to be hired have not been

promised any benefits. In fact, we have held that [the term] discriminate . . . is limited to

actions affecting the employer-employee relationship.”) (internal citations and quotation

marks omitted). In sum, regardless of the reasons in this record for Ms. Williams’s

reluctance to apply for the new position after affirmatively being invited to do so, it is

undisputed that she did not apply. By analogy to 

, the failure to

apply bars her from being able to make out an employment discrimination claim on that

basis.


         The only material fact that I might consider possibly to be in dispute is whether the

Church presented sufficient evidence to support a legitimate, nondiscriminatory reason

that it consolidated positions out of economic and efficiency concerns. The majority

suggests that it did not. Maj. Op. at *10 (“[T]he District Court assumed the

reasonableness of the Church’s purported reasons of efficiency and economics for

consolidating the two positions without a single citation to the record.”). But here too, I

think the Church met its burden as a matter of law, as Ms. Williams provided no evidence

to suggest that the proffered reason was pretextual.


         Under McDonnell Douglas, once Ms. Williams has established a prima facie case,

as we agree that she has, “the burden of production (but not the burden of persuasion)

shifts to the [employer], who must then offer evidence that is sufficient, if believed, to




                                              16
support a finding that the defendant had a legitimate, nondiscriminatory reason for the

adverse employment decision.” Kautz v. Met-Pro Corp., 

, 465 (3d Cir.

2005) (internal citations, brackets, and quotation marks omitted); 

; 

. We may consider Father Pribonic to be a representative of

the Church who is knowledgeable about its financial situation. Accordingly, his

testimony that there was increasing overhead (though admittedly, no financial

emergency), App. at 100, 109, may be taken to satisfy the Church’s burden of production.


       His testimony would of course be subject to doubt upon Ms. Williams’s ability to

point to “some evidence, direct or circumstantial,” that could cause a reasonable

factfinder to disbelieve the proffered reason or give rise to an inference that the reason is

more likely pretextual for actual discriminatory motives. Fuentes v. Perskie, 

,

764 (3d Cir. 1994).7 The essential element at this stage is the requirement to produce

“some evidence” for the inference. But Ms. Williams produced no evidence to satisfy her

burden. For example, she made no request to review the Church’s financial records.


7
 Fuentes, the case setting out the standard in our Circuit, provides that to prevail at the
pretext stage an employee must be able to point

              to some evidence, direct or circumstantial, from which a factfinder
              would reasonably either (1) disbelieve the employer’s articulated
              legitimate reasons; or (2) believe that an invidious discriminatory
              reason was more likely than not a motivating or determinative
              cause of the employer’s 

; see also Sheridan v. E.I. DuPont de Nemours & Co., 

, 1067 (3d
Cir. 1996) (en banc).


                                              17
Absent the production of evidence, we cannot conclude that Ms. Williams has satisfied

her burden to prevail on the pretext stage.


       The majority suggests that evidence exists in the record to make the requisite

demonstration of discriminatory animus. For example, it notes that Ms. Williams may

have demonstrated pretext by showing that a third employee, Mary Tracey, continued to

work at the Church for some months after the position-consolidation. Maj. Op. at *11

n.4. The suggestion is that this fact may give rise to an inference that Father Pribonic

may not have been truthful in his assertions that economic and efficiency concerns drove

his decision to eliminate Ms. Williams’s position. But the majority does not mention that

Ms. Tracey previously worked at the Church on Fridays when Ms. Mary Ann Heaps (who

filled the new position) could not. (Ms. Heaps worked four days per week and Ms.

Tracey worked the fifth day. App. at 187–88.) She continued to work in that capacity

and as a cleaner for approximately one year after Ms. Heaps was hired. App. at 223.

Alone, that information would scarcely lead a reasonable factfinder to conclude that the

Church’s efficiency reason was pretextual because there is no doubt that the Church did

reduce two separate full-time office positions to a single full-time position plus a possible

additional one-day-per-week employee.


       If “[t]he core of this case concerns the interplay of the evidentiary burdens borne

by the parties with the summary judgment standards,” Maj. Op. at *3, I believe that Ms.




                                              18
Williams has not fulfilled her evidentiary burden at the pretext stage. If this is true, it

would be an understatement to say that “a jury may eventually agree with the District

Court[] . . . .” Maj. Op. at *3. More pointedly, without the existence of disputed material

facts, I believe that summary judgment in favor of the Church was indeed appropriate.

Accordingly, though I do not agree with all its reasoning, I would affirm the District

Court’s judgment, and thus respectfully dissent.




                                              19